We Thought We Were Safe: Federal Court Holds RCRA Preempts State Petroleum Cleanup Bar Statute

In the case of Boyes v. Shell Oil Products Company, the U.S. Court of Appeals for the 11th Circuit ruled that citizens have the right to sue for the cleanup of petroleum contamination sites if there is a violation of the Resource Conservation and Recovery Act (RCRA) or if there is a threat to public health or the environment. This decision preempts a Florida law that delayed suits for cleanup of sites eligible for state restoration funding. The background to this case involves a Florida program that provided funding for the cleanup of petroleum contamination sites without legal recourse against the responsible party. This ruling could have significant implications for similar cases in the future. The Environmental Protection Department established the Environmental Discharge Indemnity (EDI) program to clean up contaminated sites. Participants could either clean up sites based on their environmental priority ranking score through the state cleanup option, or clean up immediately and wait for reimbursement under the reimbursement option.

In 1988, the EDI program ended and the Petroleum Liability and Restoration Insurance Program (PLIRP) was created. PLIRP covered cleanup costs from the IPTF, while third-party damages would be covered by insurance or another financial arrangement.

The state cleanup and reimbursement options were initially available under PLIRP, but in 1992, the reimbursement option was favored. By 1995, only preapproved site cleanup procedures were accepted, causing low-ranked sites to wait for funding.

The legislature enacted a defense in F.S. §376.308(5) to prevent third-party lawsuits until a site is funded under the new cleanup procedures. The Boyes’ complaint in the District Court for the Northern District of Florida involved contaminated properties and claims under RCRA and state law.

The district court dismissed the RCRA counts based on abstention and primary jurisdiction doctrine, and declined to consider the state law claims. The 11th Circuit held that abstention may not be appropriate when federal law preempts state law, highlighting the issue of whether the RCRA “citizen suit” provision preempts the §376.308(5) defense. The 11th Circuit court said that state law was getting in the way of the Boyes’ lawsuit for cleanup, so they can sue under federal law instead. The court also questioned whether the state’s cleanup program was good enough. EPA approval of the state program might make a difference, but Florida’s program is complicated and hasn’t been officially approved by the EPA. In Florida, the Department of Environmental Protection has rules for prioritizing cleaning up petroleum contamination. They consider things like how the contamination affects people’s health, the size of the affected area, and the impact on water sources. Sites that pose a fire hazard or threaten clean drinking water get the most priority. The department can also take emergency action if they think a site is a danger to people’s health or the environment. If necessary, a court might need to decide if Florida’s rules for cleaning up pollution are good enough. The Boyes decision raises a lot of questions about how it will impact Florida’s environmental cleanup programs and regulations. One big question is how it will affect the insurance and lending industries, as they rely on certainty when it comes to environmental risks. This decision could bring back a lot of uncertainty and fear for them, similar to what they experienced in the 1970s when environmental regulations first expanded. So, it’s unclear how this will affect real estate transactions and the ability to get insurance coverage for properties with contamination. Boyes is a law that says if there’s a petroleum spill, someone has to prove it’s a real danger. This could make things uncertain for people who lend money for real estate or provide insurance. It might also affect how financial institutions deal with properties that have had spills. It’s not clear yet how this will impact programs for cleaning up dry cleaning chemicals. Overall, Boyes is going to have a big impact on how people handle environmental issues. From July 1, 1996, no one responsible for pollution cleanup can be forced to pay for cleanup before restoration funds are available. The ranking score for funding is determined by the Florida Department of Environmental Protection. You can find information about funded cleanup sites on the DEP website. The primary jurisdiction doctrine might defer to an administrative agency with special expertise. Risk-based corrective action determines if cleanup is necessary. We want our members to understand the importance of doing their job well and helping the public. We also want to make sure that the legal system works better and that we learn more about the law.

Source: https://www.floridabar.org/the-florida-bar-journal/we-thought-we-were-safe-federal-court-holds-rcra-preempts-state-petroleum-cleanup-bar-statute/